Jones v Big Fish Entertainment LLC

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Jones v Big Fish Entertainment LLC 2018 NY Slip Op 31186(U) June 11, 2018 Supreme Court, New York County Docket Number: 158413/2014 Judge: Adam Silvera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 158413/2014 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/13/2018 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. Adam Silvera Part 22 ANYA JONES, DECISION/ORDER Plaintiffs, -against- INDEX NO. 158413/2014 MOTION SEQ NO 002 BIG FISH ENTERTAINMENT LLC, KA TRINA UYENCO, "XYZ CORP.", said Name Being Fictitious or Unknown and "JOHN DOE", said Name Being Fictitious or Unknown, Defendant, ADAM SILVERA, J. : Upon the foregoing papers, it is ordered that defendants' motion for summary judgment, pursuant to CPLR 3212, to dismiss plaintiff Anya Jones complaint against defendant Big Fish Entertainment LLC and defendant Katrina Uyenco is denied for the reasons set forth below. Before the court is defendants' motion, Motion Sequence 002, to dismiss plaintiffs complaint on the basis that defendants were not negligent in any way and did not cause plaintiffs injuries, which defendants allege resulted solely as a result of plaintiffs own negligent and reckless conduct. Plaintiff opposes motion. BACKGROUND Plaintiffs Complaint alleges that on September 27, 2016, at Second Avenue and East 1001h Street in the County, City, and State of New York, plaintiff was injured when a taxi, operated by an unknown driver defendant "John Doe" and owned by unknown party defendant "XYZ Corp" rolled over plaintiffs foot when she attempted to exit the taxi and was restrained by 1 2 of 5 [* 2] INDEX NO. 158413/2014 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/13/2018 defendant Katrina Uyenco who was allegedly an employee working under the scope of her employment for defendant Big Fish Entertainment, LLC. Plaintiff was a cast member of a reality TV show who was injured just moments after having had an on-set altercation with a fellow cast member. Defendants allege that plaintiff was injured during the filmed altercation and that under plaintiffs signed Performer Agreement contract she waived all claims for negligence against defendant Big Fish that may arise during the production of the show (Defendants Mot., Exh D). DISCUSSION Defendants' motion for summary judgment to dismiss is denied. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Wine grad v New York University Medical Center, 64 NY2d 851, 853 [1985]). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure ... to do [so]" (Zuckerman v City ofNew York, 49 NY2d 557, 560 [1980]). Under the emergency doctrine, a party faced with a sudden and unexpected circumstance, not of their own making, with little or no time to reflect, may not be negligent if their actions are reasonable and prudent in the context of the emergency (Weston v Castro, 128 AD3d 51 7, 518 [1st Dept 2016] [finding that "the existence of an emergency and reasonableness of a party's response to the situation ordinarily present questions of fact"].) Here, defendants' motion fails to make a prima facie showing of entitlement to judgment as a matter oflaw. Issues of fact exist as to whether the taxi was in motion or not during the alleged incident and whether Katrina Uyenco was an independent contractor or working under the scope 2 3 of 5 [* 3] INDEX NO. 158413/2014 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/13/2018 of her employment as an employee of Big Fish Entertainment. Further, defendants' argument that plaintiff contracted away all negligence claims and assumed all risks while participated in the TV show is unavailing. It is well settled law that an exculpatory clause will not be deemed to insulate a party from liability for its own negligent acts (Willard Van Dyke Prods. V Eastman Kodak Co., 12 NY2d 301, 302 [1963] [finding that the language of such a contract must be clear and unequivocal and refer specifically to negligence in order for a claim for liability of negligent acts to be waived]). The contract at issue here, the "Performer Agreement," does not specifically refer to negligence. An issue of fact exists as to whether defendant Uyenco was an independent contractor or an agent of Big Fish whose acts are imputable to Big Fish. Defendant Uyenco's testimony contradicts defendant Big Fish's assertion that Uyenco is indeed an independent contractor. Summary judgment is not appropriate when a "question with respect to the nature of the relationship between the tortfeasor and his alleged principal" exists (See Carrion v Orbit Messenger, 82 NY2d 742, 744 [1993]). Finally, the defendants rely on the emergency doctrine and allege that it was plaintiffs sudden and unexpected act of jumping out of a moving taxi, which was not of their own making, and gave defendant Uyenco little or no time to reflect. Defe11dants claim that they are not negligent for Uyenco's attempt to restrain plaintiff as it was reasonable and prudent in the context of the emergency. The Court finds that an issue of fact exists as to the circumstance of plaintiffs exit from the taxi. Plaintiff alleges that the vehicle was at a stop and defendants allege that the vehicle was still moving when plaintiff attempted to exit. It is unclear whether this was indeed an emergency situation and summary judgment on the basis of the emergency doctrine is precluded. Thus, defendants' motion for summary judgment is denied. 3 4 of 5 [* 4] INDEX NO. 158413/2014 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/13/2018 Accordingly, it is ORDERED that defendants' motion to dismiss plaintiffs complaint is denied; and it is further ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon defendants with notice of entry. Dared: Tzsps/i~s the DecisiolliOrder of the Court ENTELLl Hon. Adam Silvera, J.S.C. t ~HON. ADAM SILVERA· .J.S.C. 4 5 of 5

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